Facebook wins appeal over tracking non-members in Belgium

Facebook can resume tracking Belgians online even if they don't have an account with the social network, an appeals court has ruled.

The Brussels Court of First Instance had previously ordered Facebook to stop placing its "datr" cookie in Internet users' browsers unless they were Facebook members. It ordered the company to pay a fine of €250,000 per day until it complied with this interim ruling.

But on Wednesday the appeals court overturned the cookie ban and the fine on the grounds that such interim orders can only be made in urgent cases. In this case, Belgium's privacy commission waited until 2015 to forbid something Facebook began doing in 2012, suggesting it hadn't acted with urgency.

The appeals court also ruled that Facebook Ireland and its U.S. parent are outside the jurisdiction of Belgian courts, and that only Facebook Belgium was answerable to Belgian privacy law. Facebook Ireland manages Facebook's relationships with all its users outside North America.

The Commission is considering whether to appeal Wednesday's rulings by referring them to the Court of Cassation, Belgium's court of final appeal.

This is not the first time Belgian courts have failed to recognize that they have jurisdiction over foreign Internet companies, said Commission chairman Willem Debeuckelaere.

In an affair involving Yahoo, the Court of Cassation twice overturned decisions by the appeals court that it had no jurisdiction, he said, so naturally the Commission is considering whether to lodge an appeal.

"Today's decision signifies that Belgian courts can't protect the private lives of citizens protection from foreign actors. Thus, the citizen is exposed to massive violations of their right to privacy," he said.

The Facebook case began a year ago, but so far, the courts have heard only preliminary motions. The Commission expects the Brussels Court of First Instance to begin tackling the substantive issues of its original complaint next year, it said Wednesday.

A Facebook spokeswoman said the company was pleased with the court's decision, although it had not yet received a copy of it. "We look forward to bringing all our services back online for people in Belgium," she said.

Rather than allow unfettered access to its site and services without use of the datr cookie, the company had chosen to block non-account-holders from viewing public pages on its site. With the return of the cookie, those pages will once again become visible to Belgians.